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Help needed on Barney Frank’s lawsuit opt-out bill

October 20, 2011 5 comments

For a number of years, U.S. Rep. Barney Frank has proposed a common-sense piece of legislation which would give guardians of persons with intellectual disabilities a say in federally funded lawsuits supposedly brought on their wards’ behalf.

This year, Frank’s bill (H.R. 2032), is reportedly picking up some steam in Congress, where it was recently referred to the Judiciary Committee’s Constitution Subcommittee.  Tamie Hopp of VOR, a national nonprofit that advocates for a care continuum that includes developmental centers, has termed this “real progress.”  VOR is working to get to the next step, which is a hearing on the bill, either at the subcommittee or the committee level.

H.R. 2032 would prohibit any entity that receives funds from the federal government from filing a class action lawsuit involving the residents of an Intermediate Care Facility for the developmentally disabled (ICF/DD) unless the residents’ guardians have the opportunity to opt out of the suits.

In addition, the bill would require the U.S. Department of Justice to consult with the guardians in any investigations undetaken of developmental centers in which their wards are living, and provide a right of intervention to guardians if the DOJ files a lawsuit.

According to the VOR, there have been dozens of class action suits filed by federally funded legal “Protection and Advocacy” agencies and by the DOJ around the country since the 1970s, seeking primarily to shut state ICFs/DD.  Those lawsuits have brought about the closures of at least 15 developmental centers, resulting in the forced transfers of thousands of residents from their longtime homes, often with tragic consequences.

Despite the record around the country of signficant improvements in the care and conditions in ICFs and the relatively greater levels of abuse and neglect in the community system, we’ve never heard of a case in which the DOJ has brought a legal case against conditions in the privatized community-based system of care.

Thus far, Frank’s bill has 65 co-sponsors in the House, including three of the 10 members of the Massachusetts House delegation — Reps. Richard Neal, Michael Capuano, and James McGovern.  The seven other House members of the delegation have yet to sign on.

COFAR is asking people to call their congressmen and urge them to co-sponsor H.R. 2032 and request that a hearing be scheduled on the bill either by the subcommittee or the full Judiciary Committee.  Advocates of privatized care, including human services contractors around the country, are lobbying in opposition to the bill, as they always do.

In Massachusetts, no federally funded class-action suits have yet been filed against ICFs.  But at least two federally funded P&A organizations — the Disability Law Center and the Center for Public Representation — particpated as parties in court litigation in recent years over the Fernald Developmental Center.  In that litigation, the DLC and the CPR have repeatedly taken the side of the Patrick administration in seeking to close Fernald, and not the side of the residents or their families, who want to stay there.

While the DOJ suits don’t specifically call for the closure of the developmental centers, critics of the DOJ, such as the York Legal Group in Pennsylvania, note that closure of the centers is the DOJ’s ultimate goal.

Legal action brought by families and guardians of developmental center residents beginining in the 1970s brought about significant improvements in care in those facilities to the point where today, these centers provide state-of-the-art care.  It is unfortunate, however, that the federal government and advocates of privatizing public services are today using this same method of class action litigation to work against the interests of those families and guardians. 

In fact, families and guardians are fully capable of filing their own lawsuits if they feel aggrieved by the system and are knowledgeable about the various living options available to them.  They don’t need the government or anyone else to tell them what’s best for them.

You can find telephone and email contact numbers for the Massachusetts House members here.

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